This is a rule to show cause obtained by the defendant why a judgment entered upon the report of a referee should not be set aside upon the ground that the defendant was prevented from presenting his- defence. •' •
It appeared in the- evidence taken on the- rule that several hearings of the case were had and the defendant’s counsel, in his cross-examination -of witnesses, by his questions referred to the defence to be offered, but his claims were not admitted, and the credits-of'the defendant were not produced in the way of evidence. ’ '
After the plaintiff’s ease closed a day was fixed to go on with the defendant’s case.
The case was put off a number of times at the request of the counsel of the- defendant, and upon the last day fixed, and of which the defendant had notice, when the referee closed the ease the defendant’s counsel telegraphed his client not to attend, and in' obedience 'to that telegram the defendant did not attend, ánd the ease was closed and the report made without.the defence being considered. As the defendant seems to have been misled by his counsel, he should have an opportunity to put in his defence.
The rule to show cause will be made, absolute; tide' costs, however, to be paid by ’the defendant and the judgment to stand as security to the plaintiff until the final determination of the cause."